Sixth Circuit Limits Second-Bite Motions in Limine

"You don't get a second bite at the apple."  Words that strike fear into the heart of any litigator--it means that you had a chance to do something about your problem, you took it, your strategy didn't work, and now you won't get another opportunity to fix the problem, even though you have now thought of some ingenious ways to do so.
That's the story behind the Sixth Circuit limiting a party’s ability to exclude evidence before trial.  Specifically, the Court held that district courts may not entertain motions in limine (which are used to preclude the presentation of specific evidence in advance of trial) involving issues that were previously raised, or should have been raised, in a failed motion for summary judgment. The court held that these kinds of motions intrude on the jury’s role as the fact-finder and deny the opposing party the procedural protections of summary judgment.
In Louzon v. Ford Motor Company, the employee plaintiff took an approved leave of absence from his employer, Ford, to visit family in Gaza.  While abroad, security issues in the region caused Israel to close its boarders, making it impossible for the plaintiff to return back to the United States.  Ford initially extended his leave of absence, but by the time he was able to return, the extension expired and Ford terminated his employment.
The plaintiff sued Ford alleging age and national origin discrimination as well as retaliation.  After the court denied Ford’s motion for summary judgment, it filed a motion in limine to exclude plaintiff’s evidence of comparable employees on the basis that none of them were similarly situated as a matter of law.  The district court granted Ford’s motion and ultimately granted summary judgment in its favor.
The Sixth Circuit held that the district court improperly considered non-evidentiary issues in limine and vacated the grant of summary judgment.  Specifically, the court held that summary judgment is the proper mechanism to resolve non-evidentiary matters before trial.  Allowing a party to litigate issues that have been or should have been resolved at an earlier stage not only allows those dissatisfied with the court’s initial ruling a chance to re-litigate, but also deprives their opponents of the procedural  protections attached at summary judgment.
This decision means that employers will no longer be able to utilize motions in limine as a second bite at the apple when an initial summary judgment motion fails.
Thanks to my associate Susan Baker for this blog entry.